# FILED

December 12, 1997 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT NASHVILLE JUNE 1997 SESSION

STATE OF TENNESSEE ) ) 01-C-01-9607-CC-00311 Appellee, ) ) RUTHERFOR D COUNTY v. ) ) HON. J. S. DANIEL GAYLE T. PARSONS, JR. ) ) (Rape of a Child) Appellant. ) ) )

For the Appellant For the Appellee Guy R. Dotson Charles W. Burson 102 South Maple Street Attorney General and Repor ter Murfreesboro, TN. 37130 Eugene J. Honea Joe M. Brandon, Jr. Assistant Attorney Gener al 304-D South Lowry Str eet 450 James Robertson Parkwa y Smyrna, TN. 37167 Nashville, TN. 37243 William C. W hitesell, Jr. District Attorney General 303 Rutherford Co. Judicial Building Murfreesboro, TN. 37130 John W. Price III Assistant District A

ttorney General 303 Rutherford Co. Judicial Building Murfreesboro, TN. 37130

OPINION FILED:____________________ AFFIRMED WILLIAM M. BARKER, JUDGE1 The appellant was sentenced as a Chil d Rapist under Tennessee Code Annot ated secti on 39- 13-523(b). That provisi on requires hi m to serve the enti re forty four (44) y

ear sentence undi minished by any sente nce red uction cre dits he m ay otherw ise be eligible to receive.

2 The State enter

ed nolle pr

osequi as to cou nts one and two of the fou r count ind ictmen t.

3 Due to the y

oung age of the vi ctim and the nat ure of the of fenses, we ide ntify

the vict im by initials only. 2 OPINION The appellant, Gayle T. Parsons , appeals as of right the conv ictions and sentences he received in the Circuit Court of Ruther ford County. In 1995, he was indicted by a grand j ury on four counts of rape of a chil d in violation of Tennessee Code Annotated section 39-13-522 ( Supp. 1995). After a trial by jury, the appellant was convicted on two counts of rape of a child and was sentenced as a child rapist 1 to twenty two (22)

years on each count. 2 The sentences were ordered to run consecutive to each other for a total effective sentence of forty four (44) years in the Tennessee Department of Correction. The appellant raises four issues on appeal. He contends that: ( 1) The indictment was defective in failing to include the r equisite mental state for the offenses of child rape ; (2) The jur y receiv ed extraneo us and prejud icial infor mation from a biased juror in viol ation of his right to a fair and impartial jury; ( 3) The trial court erred in allowing the testimony of a registered nur se regarding the medical causation of the victim’s in juries; a nd (4) The trial cour t erred in sentenc ing him to a consecu tive sentence of forty four (44) ye ars. After a careful review of the record, we affirm the judg ment of the trial court. FACTUAL BA

CKGROUND S.H., 3 the victim in this c ase, was ten years ol d when she was raped by the appellant. The offenses occurred on sev eral occasions during the Fall of 1993 when S.H. was living

in Smyrna, Tennessee with her mother, her little s ister, and the appellant. At that time, her mother, Connie Holmes Parsons, had recently divorced4 S.H.’s nat ural fat her moved to Ohio after the di vorce and conti nued to li ve there when t he rape offenses occurred.

5 According to the testi mony of Connie Parsons, the appell ant had a fantasy about hav ing sexual relati ons with t

wo women at the same time. Ms. Parsons t old S.H. t hat if she

did not agr

ee to have sex with the appellant on his birthday, then he would pursue his sexual fantasies with Ms. Parsons’ sister, Molly Parsons. The appell ant and Mol ly Par sons were formally

married t

o each othe r and had t wo childre n. Molly

Parsons testified at t rial that the appel lant never talked to

her about want ing to have sex with two women at once.She further testif ied that she and the appel lant never engaged in sexual intercour se after th eir divorce

.

6 The facts surroundi ng that sexual encounter are t ruly d eplorabl e. According to S.H., she and her mother got undre ssed together wi th the appel lant i n the living room of thei r apartment. The appel lant proceeded to have or al sex and vagi nal int ercourse wit h Ms. Parsons apparentl y to show S. H. how to do it. S.H. testi

fied that the appell ant next t ried to h ave vaginal intercour

se with her.He searched the apartm ent for Va seline an d pene trated S.H .’s vagina w ith his fingers to facilitate the s exual inter course

. S.H. stru ggled ag ainst the a ppellant an d continu ously resiste d his attem pts to pen etrate he r vagina w ith his penis. Nevertheless,she admitted t hat he almost ful ly ent ered her vagi na before she ran away to the bathroo m. 3 S.H.’s natural father, Sherl ock Holmes, and had begun dating the appellant. 4 Ms. Parsons eventually mar ried the appellant on Februar y 4, 1994. According to S.H.’s t

estimony at trial, the appellant committed the first act of rape on August 27, 1993, the date of appel lant’s birthday. S.H . testified that during that evening, her mother t ook her into the bathroom of their apartment and explained that the appellant desired to have sexual relations with her. 5 S.H. expressed that she did not want to partici pate in any sexual acts ; however, she reluc tantly agreed at her mother’s request. Her mother, thereafter, took her into the living room w here S.H. and the appellant removed their clothing and engaged in vaginal intercours e. S.H. testified that the appellant was unable to fully penetrate her vagina with his penis; however, she explained that after several attempts, he forced his pe nis inside of her which caused extensive bleeding. 6 S.H. testified that two mor e sexual encounters occur red between her and the appellant during the months foll owing the appellant’s birthday. The second encounter occurred almost three w eeks after the first. On that occ asion, the appellant entered S.H.’s bedroom late at nig ht and carried her back to the bedroom he shared with her mother. With Ms. Parsons watching, S.H. perform ed oral sex on the appellant at his request. The appellant then attempt ed once again to have va ginal intercourse w

ith S.H.. When he was unable to penetrate her v agina with his penis , he forced her to4

have rectal intercour

se with him. The third and final encounter also occurred late at night in the appellant’s bedroom. On that occasion, S.H.performed oral sex on the appel lant before he attempted to have vaginal intercourse with her. S.H. testified that the appell ant was once again unable to fully penetrate her vagina w ith his penis; howev

er, she stated that the appellant forced her to have rectal intercourse. He then ord ered her to watch and participate in sexual activities betwee n him and Ms. Parsons. S.H.’s testimony was corroborated by the testimony of her mother, Connie Parsons. Although Ms. Pa rsons testified that the sex offenses began after the appellant’s birthday, s he vividly described two sexual enc ounters that matched the descriptions given by S.H.. Ms. Parsons testified that during the tw o encounters, the appellant would become vi olent and threaten to harm her if sh e did not allow him to have sex with S.H .. On the first encounter, she admitted that she took S.H. into the bathroom and asked her to perform sex ual acts with the appell ant. She further admitted that she watched as the appellant engaged in vaginal intercourse with S.H. on their living room floor. As to the second encounter, Ms.Parsons testified that she enter ed S.H.’s room late at night and took her to the appellant’s bedroom. She te stified that S.H. performed oral sex on the appellant before he at tempted to have vaginal intercourse with her. According to Ms. Parsons, the appellant was unable to fully penetrate S.H.’s vagina with his penis; however, he forced her to have rectal intercourse instead. He then ordered S.H. to watc h and participate as he engag ed in vaginal interc ourse with Ms. Parsons. Sue Ross, a registered nurse with the “Our Ki ds” child care center, testified that on November 8, 1994, she performed a medical exam on S.H.. Her examination revealed that S.H. had a tear in the hymenal tissue of her vagina, consistent w ith7 Ms. Ross explained t hat when she examines a chi ld, she uses t he face of a cl ock as a measurement for any vagi nal inj ury. I n this case, her examination of S.H. reve aled that S.H. is missi ng hym ena l tissu e equ al to th e spa ce be twee n 6:3 0 and 7:30 on a c lock . She opine d tha t the g ap is consistent

with non-accidental penet ration of an object i n the shape of an adul t penis. She further explained t hat the i nsertion an d use of a tampon would not cause that degr

ee of gap in t he hymenal tissue.

8 Doctor Saraswat obt ained her medicaldegree in I ndia before movi ng to Murfreesbor o, Tenn essee where s he curre ntly practices as a ped iatrician.

9 The appellant

also rel ied on the t

estimony of t

wo other wit nesses in his defense. There was testimony f rom Doctor Thomas Murphy, a Ph.D. i n clini cal psychol ogy, concern ing a vari ety of psychologi cal test

s and evaluat ions that he had conducted on t he appellant . According to Doctor Murphy, the

appellant

suffered fr

om a borderline per

sonalit y disor der due to hi s chronic pat tern of 5 penetration of an adult penis. 7 According to her testi mony, S.H. had not yet enter ed puberty at the time of the exami nation. Ms. Ross opined that the tear in S.H.’s va

gina was not caused by acci dental penetration or natural development. Another medical examiner, Doctor Sudha Saraswat, 8 testified that the tear in S.H.’s hymenal tissue mi ght have been a result of natur al development. Doctor Saraswat examined S.H.on August 9, 1994, and found that she w as missing part of the hymenal tissue in her vagina and that her vaginal opening was ten (10) millimeters in diameter. Although those findings were consistent with the findings of Sue Ross, Doctor Saraswat opined that they were not conclusive of sexual abuse. Instead, Doctor Saraswat testi

fied that she could not rule out th e possibility of S.H.’ s medical condition being attributed to her natural development. The appellant testified in his ow n defense that he had never engag ed in any sexual activity

with S.H.. He asser

ted that S.H. had made up the alleg ations of rape because she desired to liv e with her natural father i n Ohio. To support his theory , he presented testimony from Kathy Custer, a social w

orker with the Tennessee Department of Human Services. Ms. Custer interviewed S.H. on August 6, 1994, in which S.H. discussed her sexual encounters with the appellant. According to Ms. Custer, S.H. was extremely emotional and partially confused as to the details surrounding the sexual offenses. However, on cr oss examination, Ms. Cus ter admitted that S.H.’s difficultie s were normal consider ing the degree of embarrassment and regre t that she experienc ed during the inter view. 9insta bility in inte rper son al rela tions hips , his c hron ic im puls ivene ss, h is alco hol ab use , his low self esteem, and his broa d mood ranges. Doctor Murphy opined that

the appell ant is const antly dependent on affec tion and a ttention from fema les; howe ver, he co ncluded that the ap pellant is not a pedop hile. There was also test imony from Laura Willi ams, a lieutenant detect ive wit h the Smyrna Poli ce Department. Detect ive Willi ams testifi ed that she dr ove from Smyrna, Tennessee to pi ck up the appellan t and Co nnie Par sons a fter they had been ap prehen ded in C larksville. Du ring the drive back to Smyrna, Detective Williams observed t he couples’ d emeanor in the pat rol car and sh e indicat ed that they appear

ed relaxed and v

ery affectionate t

owards each other. Detectiv e Williams also te stifi ed concerning pret rial st atements given by

Ms. Parsons and S.H.. She indicat ed that Ms. Parson s’ fina l statement, descr ibing t he sexual encounte rs between the a ppellant and S.H., was consi stent with the inform ation prov ided by S.H

..

10 In a sepa rate proc eeding, C onnie Pa rsons p led guilty to two co unts of c riminal re spons ibility for the fac ilitation of rape o f a child.

11 Under Tennessee Code Annotated sect ion 40-13-202 (1997), an i ndictment must state the charged offenses i n ordinary and concise l anguage that wi ll pro vide the accu sed with a common unders tanding a nd will enab le the trial cour t to enter a p roper jud gme nt. 6 From the above evidence, the appellant was convi cted by a jury on tw o counts of rape of a child and was sentenc ed to consecutive terms of tw enty two (22) ye

ars on each count. 10 In this appeal, he challeng es both his convictions and sentences. ANAL YSIS The appellant first challenges the validity of the ind ictment charging him w ith four counts of rape of a child. He contends tha t the indictment was fatally deficient in failing to include the req uisite mens rea for the child rape offenses. This issue is without merit. The appellant relies on this C ourt’s opinion in State v. Roger Dale Hill, Sr. , No. 01C01-9508-CC-00267 (Tenn. Cr im. App. at Nashville, June 20, 1996), to assert that his indictment was defectiv e. Our supreme court, how ever, has recently reversed the decision in that case. See State v. Roger Dale Hill, Sr. , No. 01S01-9701-CC-0005 (Tenn. at Nashville, November 3, 1997). The Court recognized that modern statuto ry codes serve to avoid the hypertechnical nature of common law pleading. Therefore, according to the Court, an omission of the mens rea element from an offense is not always fatal to an indictment. Slip op. at 5-6. The Court held that an indictm ent is legally sufficient if: ( 1) Its language satis fies the constitutional req uirement of notice to the accused, (2) Its form meets the requirements set forth in Tennessee Code Annotated section 40-13-202, 11 and (3) The requisite mental state can be logically7

inferred from the alleged cri minal conduct. Slip op. at 3. In this case, counts three and four of the indictment stated in perti nent part: [O]n the ___ of September, 1993, approxi mately two weeks after the events described in C ount I, in the County and State aforesaid, and before the finding of this indictment, Gayle Parsons a nd Connie Parsons, Connie Parsons being criminally responsible for the acts of Gayle Parsons as per T.C.A. 39-11-402(2) did sexually penetrate [S.H.], a child less than thirteen (13) y ears of age, in violati on of T.C.A. 39-13-522, and against the peace and dignity of the State of Tennessee. [O]n or between the date(s) of Count III and Christmas of 19 93, in the County and State aforesaid, an d before the finding of this indictment, Gayle Parsons and Connie Parsons, Connie Parsons being criminally responsible for the acts of Gayle Parsons as per T.C.A. 39-11-40 2(2) did sexually penetrate [S.H.], a child less than thirteen years of age, in violation of T.C.A. 39-13-522,and against the peace and dig nity of the State of Tennessee. We find that the mens rea element can be inferred from the indic tment language charging the appellant with four separ ate counts of rape of a child. The indictment sets forth the statutor y provision making

it a Class A Felony

for anyone to unlawfully sexuall

y penetrate a victim, if the victim is less than thirteen (13) years of age. Tenn. Code Ann. § 39-13-522. Moreover, the indictment states the facts constituting the offenses and prov ides the appellant with s ufficient notice of the charges as mandated by our constitution. According ly, we conclude that the indictment is valid. II. The appellant next contends that he was deprived of a fa ir and impartial jury because of juror misconduct during voir dire. One of the seated jurors, Joyce McInturff, admitted during jur y deliberations that her father had sexually ass aulted her when she was a child . During voir di re, however, she re mained silent and did not disclose any information pertaining to her experience. The appellant a rgues that Ms. McInturff’s conduct exposed the jury to extraneous and prejudicial information. Although we find that Ms. McInturff should have disclosed her past experience during voir dire,we find no evidence that s he was biased against the appellant or that12 Coun sel also as ked if an y of the pros pective jur ors felt stro ngly about o r had an y com men ts to make regarding the prior questions he had aske d them during voir dire. Once again, Ms . McInturff rem ained silen t.

13 Juror disqualifications are based upon either propter def ectum or propter af

fectum

. See State v. Furloug h , 797 S.W .2d 631, 6 52 (Te nn. Crim . App. 199 0). Propter def ectum disqualifica tions perta in to genera l relationships including fa milial ties be tween a juror and a party or witne ss at trial. See id. Those disqualifica tions m ust be m ade be fore the ju ry renders a verdict. See id. Propter aff ectum disqualificati ons, however, are based upon a jur or’s bi as or parti alit

y towards a p articul ar party or witness at trial. See id. Thos e disqua lifications m ay be raise d after the jury returns its verdict. See id. In this case, the appel lant’ s challenge is propter af fectumbecause he contends t hat a juror was biased agai nst him. 8 her comments exposed the jury to extraneous or prejudi cial information. The right to trial by an impartial jury is a cornerstone of our criminal justice system. That fundamental right, as guaranteed by Artic le I, Section 9 of the Tennessee Constitution and the Six th Amendment to the United States Cons titution, requires the jury

be free of even a reasonable suspi cion of bias and prejudice. See Hyatt v. State , 430 S.W.2d 129, 130 (Tenn. 1967). The appellant bears the burden of proving a prima facie c ase of bias and impartiality on the part of the jury. See State v. Taylor , 669 S.W.2d 694, 700 (Tenn. Crim. App. 1983), per. app. denied (Tenn. 1984). In this case, the appellant first points to Ms. McInturff’s silence during voir dire to show that she prejudic ed the outcome of his case. During voir dir e, the assistant district attorney g eneral asked the prospectiv e jurors whether any

one in the group had a family member or close friend who has been charged w ith rape or some type of sexual crime. Ms. M cInturff did not respond to the State’s question. The prosecutor next asked whether any one on the panel had been close to a v ictim, including a frien d or family member, who has bee n sexually abused in s ome way. One juror admi tted that she had been a vict im of a ra pe invo lving a male fr

iend. H oweve r, Ms. M cInturf f remained silent and provi ded no information concerning her personal experience. 12 She was thereafter impaneled as a juror and she participat ed in the deliberation of the appellant’s case. After conviction, another juror informed defen se counsel about Ms. McInturff’s comments during the deliberations. Appellant raised a propter affectum 13 challenge in his motion for a new trial , arguing that Ms. M cInturff’s silence during voir dire raised a9

presumption of bias that ultimately prejudiced the outcome of his cas e. The appellant relies on our sup reme court’s decision in State v. Akins , 867 S.W.2d 350, 355 (Tenn. Crim. App. 1993). In Akins , the Court held that when a juror willfully conceal s or fails to disclose i nformation on voir dire w hich reflects on the juror’s lack of impartia lity, a presumption of prej udice arises. See id. However, that presumption may be dispelled in cases where there i s an absence of actual partiality on the part of the juror. See id. at 357. In this case, we find that any presumption of bias was completely dispelled by evidenc e that Ms. McInturff acted impartially and objectively as a member of the jury. At the hearing on the motion for a new trial, Ms. Mc Inturff testified that she remained silent during v oir dire because she belie ved her objectivity

would not be compromised by her past ex perience. She further expla ined that the questions duri ng voir dire did not req uire her to disclose her personal experience. Ac cording to her testimony, no charges had ever been brought agai nst her father for the sexual as sault. Moreover, she indicat

ed that she had resolved the ex perience during her chi ldhood and had never let it affect her adul t life. Her testimony, as corr

oborated by two other j urors, also revealed that she had initially voted t

o acquit the appellant. The ju ry vote was nin e (9) to three (3) in fav or of a guilty verdic

t at the time she disclosed her past experience. As the deliberations continu ed, the n ine jur

ors wh o favore

d a guilty ver

dict began questioning

Ms. Mc Inturff as to why she was

voting for an acquitt

al. Ms. McInturff responded that , “I am trying to be a good juror. I’m try ing to weigh all

of the arguments in the case, al l of the evidence.” At that point,she confessed that she had been abused as a child by her father and that she could relate to the victim in this cas e. However, she in dicated that despite her past experienc e, she was focused on revi ewing all the evi dence and deciding the case objecti vely. Two other jurors, Fay

e Hubbard and Francis Musc atell, testified that they observed Ms. McInturff’s confession during the deliberations. Accordin g to their10

testimony, Ms. McIntu rff was among the three ju rors in fav

or of an acqui

ttal at the t ime she broke down and revea led her past experience. After she disclosed her pers onal experience, she and the other jurors continued to deliberate f or another two hours before rendering a unanimous verdict to convict the appellant. Ms. Hubbard and Mr. Muscatell both testified that Ms. McInturff’s comments did not bias their decision to convict the appellant. Furthermore, based upon the jury’s discussion of the evidence during deliberation, they opined that every jur

or focused closely on the ev idence and remained objective in r endering the verdict. From that evidence, we find that any presumption of bias, arising from Ms. McInturff’s silence during voir dire, was completely dispelled by her impartiality throughout the case. Althoug h we agree that Ms. M cInturff should have disclosed her past experience during voir dire, we find no evidence that she was biased against the appellant or that her partic ipation as a juror expos ed the jury to any ex

traneous information. To the contrary, Ms. McInturff’s comme nts about her past experience had absolutely no bearing on whether the appellant committed the sexual offenses against S.H.. In lig ht of the overwhelming e vidence against the appel lant, we find that any possible prejudice from Ms. McInturff’s partici pation as a juror is harml ess beyond a reasonable doubt. Moreover, there is no evidence that Ms. McInturff prejudiced the jury against the appellant. The jury vote was already nine (9) to three (3) in favor of a guilty verdict when Ms. McInturff rev ealed her personal experi ence. Ms. McInturff never a dvocated or suggested, directl

y or indirectly , that the appellant should be conv icted because of her experience. Instead, she was one of the three jurors who originally voted to acquit the appellant. The record demonstrates that sh e and the other jurors took great care in reviewing the evidence objectively and rendering a fully deliberated verdict against the appellant. We, therefore, conclude that the appel lant has not carried his b urden to show that Ms. McInturff was biased or impartial or that her presence on the jury prejudiced the outcome of his case.11 III. The appellant next contends that the trial court erred i n allowing the testi mony of a registered nurse regarding the medical causation of the victim’s injuries. He argues that Sue Ross, a r egistered nurse, was

not qualified to testify as an expert under the Tennessee Rules of Evid ence. This issue is without merit. Rule 702 of the Tennessee Rules of Evidence provides tha t, “[i]f scientific, technical, or other speci alized knowledge w ill substantially assist the trier of fact to understand the evidence or t o determine a fact in issue, a w itness qualified as an expert by knowled ge, skill, experi ence, training, or educati on may testify in the form of an opinion or otherwise. ” To qualify as an expe rt, a witness must hav e experience or education within an area of k nowledge or expertise beyond the scope of common knowledge. See Kinley v. Tennessee State Mutual Insurance Co., Inc. , 620 S.W.2d 79, 81 (Tenn. 1981). In this case, the trial c

ourt found that Sue Ross was a licensed registered nur se who has a Master of Scienc e degree in Nursing from Vanderbilt Universi ty and a Bachelor of Science degree i n Nursing from the Univ ersity of Tennessee at Memphis. Additionally, Ms. Ross has qualified in prior cases as an expert in her field of pediatric nursing and she had examined S.H. through her wor

k as a Nurse Practition er at the “Our Kids” child care clinic. From that evidence, the trial court concluded that Ms. Ross was qualified as an expert to testify about S.H.’s injuries. The trial court has broad discretion in determining the admissibility of expert testimony. See Otis v. Cambridge M utual Fire Insurance Co. , 850 S.W.2d 439, 443 (Tenn. 1992). When the trial court concludes that a witness quali

fies as an expert and the witness testifies within the scope of her expertise, then the trial court’s decision will not be overturned absent an abus e of discretion. See State v. Rhoden , 739 S.W.2d 6, 13 (Tenn. Crim. App. 1987), per. app. denied (Tenn. 1987).12 We find that the trial court did not abuse its discretion in allow

ing Ms. Ross to testify concerning S.H.’s injuries. Ms. Ross performed a physical examination of S.H. and found that she had a tear in the hy menal tissue of her vagina.Based upon that finding, Ms. Ross opined that the tear was consist ent with non-accidental penetration from an object in the shape of an adult peni s. Her testimony w as clearly with in the scope of her expertise as a licensed pediatric nurse. Therefore, the trial court properly admitted her testimony into e vidence. IV. The appellant next contends that the trial court erred i n sentencing him to consecutive twenty two (22) year sentences on the two counts of rape of a child. He argues that the trial co urt improperly reli ed on the same enhancement factors both to increase his sente nces and to order t hem to ru n consecu tively. This issue is without merit. When an appellant complains of his sentence, we mus t conduct a de novo review of the record. See Tenn. Code Ann. § 40-35-401(d) (Supp. 1995). The sentence imposed by the trial court is accompanied by a presumption of correctness and the appealing party c arries the burden of showi ng that the sentence is impr oper. See Tenn. Code Ann. § 40-35-401 (Sentenci ng Commission Comments). The presumption, however, i s conditioned upon an affirmative s howing in the record that the trial court consider

ed the sentencing principl es and all relevant facts a nd circumstances. See State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991). In this case, the trial c

ourt considered the princi ples of sentencing and the totality of the evidence before sentencing appellant to tw enty two years on each count of rape of a child. The trial cour t applied the following enhancement factors: (1) The appellant has a previous hi story of criminal conv ictions or criminal beh avior; (2) The appellant was a leader in the commission of the off enses involving two or more criminal actors; (7) The offenses involved a vic tim and were committed to g ratify the14 The State contends t hat enhancer (5)should also apply t o the appell ant’s sentences. Tenn. Code Ann. § 40-35-114 (5) (Supp. 1996) . Enhancer (5) applies i n cases where the defe ndant treat s or allow s the victim to be treate d with exc eptio nal cr uelty d uring the c om mis sion of the offe nse . In this case, we find that the appellant treated S. H. with except ional cr uelty during t he commission of the sexual offenses. The evi dence shows that af ter the appel lant had r ectal i ntercourse wi th S.H., he required h er to watch and par

tici pate as he engaged i n vaginal intercour se with S.H. ’s mother. That evidence supports the ap plicat ion of Enhancer ( 5). The State , however, h as not requeste d this Court to increase appellan t’s senten ces up on app lying Enhan cer (5). 13 appellant’s desire for pleas ure and excitement; (8) The appellant has a previous history of unwilli ngness to comply wi th the conditions of a sentence inv olving community release; and (15) The appellant abused a position of pri vate trust that significantly facilitated the commission of the offenses. Tenn. Code A nn. § 40-35-114 (1), (2), (7), (8), and (15) (Supp. 1995). 14 The trial court did not find an y mitigating factors. The appellant does not challenge the application of the five enhancement factors to his sentences. He contends instead that the trial court erred in rely

ing on the same enhance rs both to increase his sente nces and to order co nsecutive sentencing. On the issue of consecutive s entencing, the trial cour t relied on Tennessee Code Annotated section 40-35-115( b)(5), which states that: The court may order sentences to run consecutively

if the court finds by a preponderance of the evidence that : (5) The defendant is convict ed of two (2) or more statuto ry offenses involving sexual abuse of a minor with consideration of the aggrav ating circumstances ari sing from the relationship between the de fendant and victim or vic tims, the time span of defendant’s undetected sexual acti vity, the nature and sc

ope of the sexual acts and th e extent of the residual, physica l and mental da mage to the victim or vi ctims. The trial court applied the abo ve language and found that the appellant had a relationship with the victim which he use d to commit the multiple sexu al offenses. Furthermore, his crimin al acts against the vi ctim were particular ly heinous and were undetected for an extended period of ti me. The trial court, therefore, ordered appellant’s sentences to be ser ved consecutively

. From our de novo

review, it is apparent that the trial court considered the appellant’s private r

elationship with the v

ictim both to enhance his sentenc es and to15 The trialcourt rel ied on the app ellant ’s rela tionshi p with S.H. to enhance his sentences under Tennessee Code Annotated secti on 40-35-114 (15) (Supp. 1995). The trial court further reli ed on that relationsh ip to order c onsec utive sen tences under T ennes see C ode An notated s ection 40 -35-115 (b)(5).

16 See State v. Fra nklin , 919 S.W .2d 362, 3 66-67 (T enn. Cr im. Ap p. 1995) , per. app. den ied (Tenn. 1996) (uphol ding the t rial co urt’s deci sion to enhance appellant’s sentences and t o impose consecutive sent

encing based upon t he fact that appellant

committed the cri minal offenses whi le on probation ); Stat e v. Mee ks , 867 S.W.2d (Tenn. Crim. App. 1993) (upholdi ng the use of appel lant’ s prior crimina l activity both to en hance his sente nces a nd to req uire cons ecutive s entenc ing). State v. James A. Hester , No. 01C01-9410-CC-00352, (Tenn. Crim. App., at Nashvil le, May 17, 1995) (holdi ng that t he use of th e sam e facts b oth to enh ance s entenc es and to impo se con secutive senten ces do es not viola te the doub le jeopard y clause o f either the T ennes see C onstitution o r the Unite d States Cons titution). 14 order consecut ive sentencing. 15 The appellant argues that the trial court’s consideration was impr oper; however, he cites no authority to suppor t his contention. Our review of the appli cable law indicates th at the trial court had ample authority to support its decision. 16 This Court has previo usly determined that, “[t ]here is no prohibition in the 1989 Sentenci ng Act against using the same facts and circumstances both to enhance se ntences under applicable enhancement factors and to require those sentences to be served consecutively.” See State v. Meeks , 867 S.W.2d 361, 377 (T enn. Crim. App. 1993). We, th erefore, conclude that the trial court properly considered appellant’s relationship with the victim both to enhance his sentences and to impose conse cutive sentencin g. Furthermore, our de novo review reveals that the length and consecutive nature of appellant’s sentences are suppor ted by separate facts. The appell ant has a prior history of criminal behav ior, he was the leader i n committing the sexual offenses,he committed the offenses against the v ictim to obtain personal ple asure and excitement, and he has demonstrated an unwil lingness to comply w ith conditions of community release. Tenn. Code Ann. § 40-35-114 (1), (2), (7), and (8). Moreover, the record reflects that the appellant manipul ated his private relationship with the vi ctim to commit the sexual offenses over an extended period of time. Those undi sputed factors support the consecutiv e, twenty two (22) year sentences on each c ount of rape of a child. Additionally, we find that appellant’s consecutiv e sentences reasonably rel ate15

to the severity of his crimes and serve to protect the public from his possible future criminal activity

. See State v. Wilkerson , 905 S.W.2d 933, 938-39 (Tenn. 1995). The record reveals that the

appellant has a history of criminal behavior that h as not been rehabilitated, but instead, has become increasingly more severe throughout hi s life. In this case, his acts of rape and manipulation against a helpless, young victim were extremely heinous and r eflect a need to protect society from his future criminal behavior. Based upon the foregoing, the ju dgment of the trial court is affirmed.

____________________________ WILLIAM M. BARKER, JUDGE

CONCUR:

_____________________________ JOE B. JONES, Pres iding Judge

_____________________________ THOMAS T. WOODALL, JUDGE